The Affordable Care Act is still evolving; counsel should stay vigilant

Likely the most hotly-debated piece of legislation to come from President Obama’s desk during his now five-year tenure, the Affordable Care Act (ACA) has seen both its defenders and detractors.

However, due to regulatory actions or delays, the ACA still has not been fully enacted as passed. So what is left, and what will in-house counsel need to know when it does?

Politco has run a multi-part special report on the Obama administration’s executive action and regulatory agenda surrounding the State of the Union. In a look at the Affordable Care Act, Jason Millman outlines some of the key provisions that are coming sooner rather than later.

“Pending changes like new nondiscrimination standards for health plans will broadly affect the health care industry,” Millman writes. “Others, such as new calorie-count requirements on menus and vending machines, will be felt in the business community.”

Many of these changes were delayed due to a bitterly divided Congress over the issue of the ACA. As a result, the administration delayed many periphery aspects of the Act in order to perfect key provisions before the start of enrollment in October 2013 and expansion in January 2014.

Just because those delayed provisions weren’t priority number one, though, does not mean that the changes will not have major implications. One problem that Millman mentions is the administration weighing a “belly-button tax” that is intended to support a $20 million reinsurance program to defend insurers if too many sick patients sign up right away.

The tax is receiving push-back from corporations in some sectors, believing that the tax unfairly supports unions. However, corporations cannot fight against the tax by ignoring the provision and instead need to work quickly towards compliance. Companies have already learned that ignoring certain segments of the ACA is a proven way to attract unwanted litigation.

In addition, because ACA implementation is in its early stages, the government does not have many answers for questions employers have concerning the effects of policy implementation. As Milliman points out, “Some of the most important actions ahead may be impossible to predict until after the initial open-enrollment period ends March 31.”

But businesses may not have the time to wait until March 31 if they wish to fully comply with the government’s wishes. That may push some C-suites to reexamine their employee healthcare system. New data from New Highroads Compliance shows that 88 percent of survey respondents indicated they’ve considered moving to a private exchange in the next five years, often because of a lack of communication or regulatory action surrounding the new system.

“What we are seeing is the continued struggle of employers to comply with ACA requirements, yet wisely manage resources and costs. It is a challenge that will only increase as new regulations under the ACA take effect, current safe harbors and postponed effective dates expire, and enforcement of the regulations begin in earnest,” said Kim Buckey, principal of New Highroads Compliance.

For more on the Affordable Care Act, check out InsideCounsel’s ongoing coverage: